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Saturday, March 23, 2013

A Short Post About A Big Lie

In Pratt's papers, we find a note stating that the CAOs are "site specific" and therefore allow for variable buffers. Over and over again, we have heard that our CAOs are complex because they are "site specific."

Let's explain the County's site-specific approach.

Suppose we had a buffer table in the CAOs that "protected" critical areas on your property based upon your eye color. The table might show that blue-eyed people get buffers of 50 feet, brown-eyed people have to make do with 100-foot buffers, and if you have green eyes, you are eligible for the Green Option and don't have to follow the same rules as everyone else.

Now suppose you constructed a separate table for another land-use restriction, this time based on your shoe size. We could formulate a system where the interplay between your eye color and your shoe size would determine your final land use controls. Besides eye color and shoe size, other specific factors might be brought into play, such as height or weight.

Now, that sort of CAO would be entirely specific to you, but it would be irrelevant for the purpose of "protecting" the critical area.

Similarly, our CAOs are based on site-specific factors that have no relevance to any problem and no relevance to protections of critical areas. Without a site-specific assessment of the source of a problem on a parcel, a site-specific remedy is meaningless.

14 comments:

I have a few questions that maybe the TH or ECK or another reader may be able to answer....

1) What are the GMHB appeals by both the FOSJ and CSA actually seeking? Is it a "throw it out and start over"? or is it "lets go through this and make substantial changes"? or some mix of the two??

2) It appears that this CAPR suit has some serious traction, given what is publicly available. What is the potential outcome if the CAPR group prevails? Are they revising their settlement to try to obtain some of their goals rather than place all hope on a future court victory?

I am not that familiar with court and such, but I do know that you maybe 100% correct, you may have 100% case law on your side, and you still may lose in court.

I just hope that maximum utility can be leveraged from these proceedings, in the interest of the community.

While everything is still in play, I think the parties involved are reluctant to publicly elaborate on their positions too much.

At least one party to the GMHB case has asked that the CAOs be entirely invalidated, and oddly enough, that party is the Friends. They are asking the Board to invalidate the CAOs that they urged passage of.

As for the CAPR suit, I think the remedy/cure is a subject of active speculation. Anything could happen ... or not happen. Right now, your guess is as good as anyone else's.

Based on what I've read so far, the GMHB appeals all seek to have one or more pieces of the new CAO overturned. That would result in the pieces being sent back for a do-over. I do not think that the Board has authority to make changes itself. It can only reject parts or the whole.

Several appealing parties seek to have most or all of the new CAO overturned due to alleged violations of the two laws governing the process through which it was enacted--the Growth Management Act and the Open Public Meetings Act. So far as I am able to determine, the OPMA violation, if proven, would invalidate the entire ordinance and the whole thing would have to go back to Council. Other claims include failure to identify a problem and a connection between that problem and what was imposed (effectively, an irrationality claim) and failure to conduct an economic analysis of impact on the community or housing costs.

CAPR joined the GMHB appeal recently based on its OPMA lawsuit. A proven relevant OPMA violation would, I believe, require remand of the entire ordinance.

I fear that we are far past the point where maximum utility can be obtained from the CAO update process. In my personal opinion, that goal was lost when the decision was made to proceed with a solution to a problem that did not need to be identified.

Disclaimer: I am a lawyer, but not a land use lawyer, and this is not legal advice. I am not a member of CAPR, CSA or the Friends and base these comments on what I have read of the public pleadings.

Thank you for a very good summary for those of us that aren't quite up to speed on things.

Anyone have any sort of time frame for the GMHB to hear these appeals and render a decision??

Seems like the recent notion by the sitting council to delay the implementation of the adopted CAO might be warranted, in light of the extensive appeals by multiple parties and the other litigation surrounding the very inception and process used to create these rules.